Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading amended: No. 41 of 1992 s. 6; amended:
No. 19 of 2010 s. 4.]
THIS AGREEMENT made the 10th day of March One thousand nine hundred and
seventy-two BETWEEN THE HONOURABLE JOHN TREZISE TONKIN, M.L.A., Premier of the
State of Western Australia acting for and on behalf of the said State and
Instrumentalities thereof from time to time (hereinafter called “the
State”) of the first part, and HANCOCK PROSPECTING PTY. LTD. and WRIGHT
PROSPECTING PTY. LTD. companies incorporated in the State of Western Australia
under the provisions of the Companies Act 1943 and each having its registered
office at 251 Adelaide Terrace, Perth in the said State and carrying on
business under the style or firm name of “Hancock and Wright”
(hereinafter called “the Joint Venturers” in which term shall be
included the Joint Venturers and each of them and their and each of their
respective successors and assigns) of the other part.
WHEREAS —
(a) The
Joint Venturers intend to make investigations as to the iron ore reserves in
the mining areas defined in clause 1 hereof and to carry out certain
investigations relating to the mining, transport by rail and shipment of iron
ore from the mining areas with a view to entering into a contract or contracts
for the export or sale of iron ore produced from the mining areas.
NOW THIS AGREEMENT WITNESSETH —
Interpretation 4
1. In this Agreement subject to the context
—
“approve” “approval”
“consent” or “direct” means — approve, approval,
consent or direct in writing as the case may be;
“associated company” means —
(a) any
company having a paid up capital of not less than two million dollars
($2,000,000) notified in writing by the Joint Venturers to the Minister which
is incorporated in the United Kingdom the United States of America or the
Commonwealth of Australia and which —
(i)
is promoted by the Joint Venturers or any of them for all
or any of the purposes of this Agreement and in which the Joint Venturers or
any of them hold not less than twenty per cent (20%) of the issued ordinary
share capital; or
(ii)
is related within the meaning of the term subsidiary in
section 6 of the Companies Act 1961 to any company in which the Joint
Venturers or any of them hold not less than twenty per cent (20%) of the
issued ordinary share capital; and
(b) any
company approved in writing by the Minister for the purposes of this Agreement
which is associated directly or indirectly with the Joint Venturers or any of
them in their business or operations hereunder;
“B.H.P.” means The Broken Hill
Proprietary Company Limited or any subsidiary thereof;
“commencement date” means the date
referred to as the commencement date in clause 7(3) hereof;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“deposits’ townsite” means the
townsite established at Wittenoom or to be established elsewhere on or near
the mining areas pursuant to this Agreement;
“direct shipping ore” means iron ore
which has an average pure iron content of not less than sixty per cent (60%)
which will not pass through a one-half (½) inch mesh screen and which is
sold without concentration or other beneficiation other than crushing and
screening;
“export date” means the earlier of the
following dates namely —
(a) the
date of expiration of the period referred to in clause 9(1) of this Agreement;
(b) the
date when the Joint Venturers first export ore hereunder (other than ore
shipped solely for testing purposes);
(c) the
date the Joint Venturers first deliver any ore sold to Hamersley.
“financial year” means a year
commencing on and including the 1st day of July;
“fine ore” means iron ore which has an
average pure iron content of not less than sixty per cent (60%) which will
pass through a one-half (½) inch mesh screen and which is sold without
concentration or other beneficiation other than crushing and screening;
“fines” means iron ore (not being
direct shipping ore or fine ore) which will pass through a one-half (½)
inch mesh screen;
“f.o.b. revenue” means the price for
iron ore from the mineral lease the subject of any shipment or sale which is
payable by the purchaser thereof to the Joint Venturers or an associated
company, less all export duties and export taxes of all kinds whatsoever and
less all costs and charges properly incurred and payable by the Joint
Venturers to the State or a third party from the time the ore shall be placed
on ship at the Joint Venturers’ wharf to the time the same is delivered
and accepted by the purchaser, including —
(1) ocean freight;
(2) marine insurance;
(3) port and handling
charges at the port of discharge;
(4) costs of
delivering the ore from port of discharge to the smelter;
(5) weighing,
sampling, assaying, inspection and representation costs incurred on discharge
or delivery;
(6) shipping agency
charges;
(7) import taxes by
the country of the port of discharge; and
(8) such other costs
and charges as the Minister may in his discretion consider reasonable in
respect of any shipment or sale.
For the purposes of this definition —
(a) the
Minister may (in respect of costs or charges as set out in Items (1) to (7)
inclusive of this definition) notify the Joint Venturers in writing that in
respect of any shipment or sale, he does not regard a cost or charge as having
been properly incurred and in such case the Joint Venturers may refer the
matter to arbitration hereunder and unless and until such matter is resolved
in favour of the Joint Venturers, such cost or charge shall not be deemed to
have been properly incurred;
(b)
Notwithstanding anything contained in this definition to the contrary, a cost
or charge as set out in Items (1) to (7) inclusive of this definition shall
not (unless the Minister so determines in accordance with the provisions of
paragraph (c) of this definition) be deemed to be properly incurred if such
charge is directly or indirectly imposed upon or incurred by the Joint
Venturers or an associated company pursuant to an arrangement entered into
between the Joint Venturers and the State;
(c)
Costs or charges other than those set out in Items (1) to (7) inclusive of
this definition and costs and charges to which paragraph (b) of this
definition applies shall be deemed to be properly incurred if the Minister in
his discretion so determines and in making his determination the Minister
shall have regard to such matters as the parties to and the bona fide nature
of the transaction resulting in the cost or charge;
“Hamersley” means Hamersley Holdings
Limited or any subsidiary thereof;
“iron” means the product such as pig
iron resulting from the reduction of iron ore or iron ore concentrates by
thermal or other means whereby the iron content is increased to not less than
ninety per cent (90%) and the product at some stage in the process is in a
molten castable form;
“iron ore concentrates” means products
(whether in pellet or other form) resulting from secondary processing but does
not include metallised agglomerates;
“Joint Ventures’ wharf” means
the wharf to be constructed by the Joint Venturers pursuant to this Agreement
for the shipment of ore from the mineral lease or (except for the purposes of
the definition of “port”) the temporary wharf for the time being
approved by the Minister as the Joint Venturers’ wharf for the purposes
hereof during the period to which such approval relates;
“Land Act” means the Land Act 1933 ;
“metallised agglomerates” means either
—
(a)
products resulting from reduction of iron ore or iron ore concentrates by
thermal or other means whereby the iron content is increased to not less than
ninety per cent (90%); or
(b)
products resulting from some equivalent or more advanced form of metallising
process approved by the Minister;
“mineral lease” means the mineral
lease or mineral leases referred to in clause 8(1)(a) hereof and includes any
renewal thereof;
“Mining Act” means the Mining Act 1904
;
“mining areas” mean the areas
delineated and coloured red on the plan marked “A” initialled by
or on behalf of the parties hereto for the purposes of identification;
“Minister” means the Minister in the
Government of the said State for the time being responsible (under whatsoever
title) for the administration of the Ratifying Act and pending the passage of
that Act means the Minister for the time being designated in a notice from the
State to the Joint Venturers and includes the successors in office of the
Minister;
“month” means calendar month;
“notice” means notice in writing;
“ore” or “iron ore” means
iron ore from the mineral lease;
“person” or “persons”
includes bodies corporate;
“port” means the port or harbour and
adjacent industrial area approved by the Minister hereunder;
“port townsite” means the townsite
approved by the Minister hereunder to be expanded and developed near the port;
“Ratifying Act” means the Act to
ratify this Agreement and referred to in clause 3 hereof;
“said State” means the State of
Western Australia;
“secondary processing” means
concentration or other beneficiation of ore other than by crushing or
screening and includes thermal electrostatic magnetic and gravity processing
and agglomeration pelletisation or comparable changes in the physical
character of ore;
“special lease” means a special lease
or license to be granted in terms of this Agreement under the Ratifying Act
the Land Act or the Jetties Act 1926 and includes any renewal thereof;
“this Agreement” “hereof”
and “hereunder” includes this Agreement as from time to time added
to varied or amended;
“ton” means a ton of two thousand two
hundred and forty (2,240) lbs. net dry weight;
“wharf” includes any jetty structure;
reference in this Agreement to an Act shall
include the amendments to such Act for the time being in force and also any
Act passed in substitution therefor or in lieu thereof and the regulations for
the time being in force thereunder;
power given under any clause of this Agreement
other than clause 38 hereof to extend any period or date shall be without
prejudice to the power of the Minister under the said clause 38;
marginal notes shall not affect the interpretation
or construction hereof 4 ;
any covenant or agreement on the part of the Joint
Venturers hereunder will be deemed to be a joint and several covenant or
agreement as the case may be.
Initial Obligations of the State 4
2. (1) The State shall
—
(a)
forthwith (subject to the surrender of the rights of occupancy as referred to
in sub-clause (2) of this clause) cause to be granted to the Joint Venturers
and to the Joint Venturers alone rights of occupancy for this purposes of this
Agreement (including the sole right to search and prospect for iron ore) over
the whole of mining areas under Section 276 of the Mining Act at a rental at
the rate of eight dollars ($8) per square mile per annum payable quarterly in
advance for the period expiring on the 31st December, 1972 and shall then and
thereafter subject to the continuance of this Agreement cause to be granted to
the Joint Venturers as may be necessary successive renewals of such last
mentioned rights of occupancy (each renewal for a period of twelve (12) months
at the same rental and on the same terms) the last of which renewals
notwithstanding its currency shall expire —
(i)
on the date of application for a mineral lease to the
Joint Venturers under clause 8(1)(a) hereof;
(ii)
at the expiration of one (1) month from the commencement
date;
(iii)
on the determination of this Agreement pursuant to its
terms; or
(iv)
on the day of the receipt by the State of a notice from
the Joint Venturers to the effect that the Joint Venturers abandon and cancel
this Agreement
whichever shall first happen;
(b)
introduce and sponsor a Bill in the Parliament of Western Australia to ratify
this Agreement and endeavour to secure its passage;
(c) to
the extent reasonably necessary for the purposes of clauses 4 and 5 hereof
allow the Joint Venturers to enter upon Crown lands (including land the
subject of a pastoral lease) and survey possible sites for a port, the Joint
Venturers’ wharf, a railway, the deposits’ townsite and for
stockpiling and other areas required for the purposes of this Agreement; and
(d) at
the request and cost of the Joint Venturers co-operate with the Joint
Venturers in the discharge of their obligations under clause 4(1)(a) hereof.
Surrender of rights of occupancy 4
(2) The Joint
Venturers shall forthwith surrender all the rights of occupancy granted to the
Joint Venturers under clause 2 of the Agreement made between the State and the
Joint Venturers a copy of which is set out in the First Schedule of the Iron
Ore (Hanwright) Agreement Act 1967-1968 which were not surrendered pursuant
to subclause (2) of clause 4 of the Agreement made between the State the Joint
Venturers and Mount Bruce Mining a copy of which is set out in the Second
Schedule of the Iron Ore (Hanwright) Agreement Act 1967-1968 .
Ratification and Operation 4
3. (1) Paragraph (a)
of sub-clause (1) of clause 2, sub-clause (2) of clause 2, sub-clause (2) of
this clause and the subsequent clauses (other than clauses 38 and 41 of this
Agreement) shall not operate unless and until —
(a) the
Bill to ratify this Agreement as referred to in paragraph (b) of clause 2
hereof is passed as an Act before the 30th day of June, 1972 or such later
date if any as the parties hereto may mutually agree upon;
(b)
Bills to ratify each of the agreements referred to in the First Schedule
hereto are passed as Acts before the 30th day of June, 1972 or such later date
if any as the parties hereto may mutually agree upon.
If the said Bills are not passed before that date or later date or dates (as
the case may be) this Agreement will then cease and determine and none of the
parties hereto will have any claim against any other of them with respect to
any matter or thing arising out of done performed or omitted to be done or
performed under this Agreement except as hereinafter provided in clause 20
hereof.
(2) The following
provisions of the Agreement shall notwithstanding the provisions of any Act or
law operate and take effect namely —
(a) the
provisions of paragraph (a) of clause 2, clause 8, the proviso to paragraph
(a) of sub-clause (2) of clause 9 and clauses 14, 15, 16, 22, 23, 24, 25, 27,
28, 32, 33, 34, 37, 38, 39, 40 and 41;
(b)
subject to paragraph (a) of this sub-clause the State and the Minister
respectively shall have all the powers discretions and authorities necessary
or requisite to enable them to carry out and perform the powers discretions
authorities and obligations conferred or imposed upon them respectively
hereunder; and
(c) the
State may as for a public work under the Public Works Act 1902 resume any
land or any estate or interest in land required for the purposes of this
Agreement and may lease or otherwise dispose of the same to the Joint
Venturers; and
(d) no
future Act of the said State will operate to increase the Joint
Venturers’ liabilities or obligations hereunder with respect to rents or
royalties.
4. (1) Insofar as has
not already been done to the satisfaction of the Minister the Joint Venturers
will commence forthwith and carry out at their expense (with the assistance of
experienced consultants where appropriate) —
(a) a
thorough geological and (as necessary) geophysical investigation of the iron
ore deposits in the mining areas and the testing and sampling of such
deposits;
(b) a
general reconnaissance of the various sites of proposed operations pursuant to
the Agreement together with the preparation of suitable maps and drawings;
(c) an
engineering investigation of the route for a railway from the mining areas to
the port and wharf installation for the export of ore;
(d) a
study of the technical and economic feasibility of the mining transporting
processing and shipping of ore from the mining areas;
(e) the
planning of suitable townsites in consultation with the State but having due
regard to the general development of any port townsite and (if and to the
extent applicable) the deposits’ townsites for use by others as well as
the Joint Venturers;
(f) the
investigation in areas approved by the Minister of suitable water supplies for
mining industrial and townsite purposes;
(g)
metallurgical and market research.
(2) The Joint
Venturers shall collaborate with and keep the State fully informed at least
quarterly commencing within one (1) quarter after the execution hereof as to
the progress and results of the Joint Venturers’ operations under
sub-clause (1) of this clause. The Joint Venturers shall furnish the Minister
with copies of all reports received by them from consultants in connection
with the matters referred to under sub-clause (1) of this clause and with
copies of all findings made and reports prepared by them.
(3) If the State
concurrently carries out its own investigations and reconnaissances in regard
to all or any of the matters mentioned in sub-clause (1) of this clause or any
alternative port site the Joint Venturers shall co-operate with the State
therein and so far as reasonably practicable will consult with the
representatives or officers of the State and make full disclosures and
expressions of opinion regarding matters referred to in this sub-clause.
(4) The Joint
Venturers will employ or retain or ensure that experienced consultant
engineers (approved by the Minister) are employed or retained to investigate
report upon and make recommendations in regard to the sites reasonably
required by the Joint Venturers under this Agreement for the overall
development of a suitable port if necessary for the Joint Venturers’
operations hereunder (including the Joint Venturers’ wharf, areas for
installations, stockpiling and other purposes in the port) but in such regard
the Joint Venturers will require such engineers to have full regard for the
general development of the port with a view to the reasonable use by others of
the port and the Joint Venturers will furnish to the State copies of such
report and recommendations. When submitting to the Minister detailed proposals
as referred to in clause (5)(2)(a) hereof in regard to the matters mentioned
in this sub-clause the Joint Venturers will so far as reasonably practicable
ensure that the detailed proposals —
(a) do
not materially depart from the report and recommendation of such engineers;
(b)
provide for the best overall development of the port so far as the same
relates to the Joint Venturers’ activities; and
(c)
disclose any conditions of user and where alternative proposals are submitted
the Joint Venturers preferences in regard thereto.
Joint Venturers to submit proposals 4
5. (1) As soon as
possible after the execution of this Agreement the Joint Venturers will submit
to the Minister their proposals for the location and an outline of the
proposed development of the port and the Minister will within one (1) month
after such submission notify the Joint Venturers of his approval or otherwise
or may submit an alternative proposal PROVIDED THAT in dealing with the Joint
Venturers’ proposals for the location and development of the port as
provided in this sub-clause the Minister shall take into consideration the
possible future requirements of others who may or could be concerned in the
area and no priority shall be given to the Joint Venturers for the reason that
their proposals were first in time.
(2) Subject to
agreement being reached as to the location and development of the port then by
the 30th day of June, 1973 or if the Joint Venturers satisfy the Minister that
they are performing their obligations pursuant to clause 4(1) hereof and have
requested an extension to the 31st day of December, 1973 then by that date or
such further extended date if any as the Minister may approve or as may be
determined by arbitration as hereinafter mentioned the Joint Venturers will
where not already done submit subject to the provisions of this Agreement to
the Minister —
(a) to
the fullest extent reasonably practicable their detailed proposals (including
plans where practicable and specifications where reasonably required by the
Minister) with respect so far as relevant to the mining areas (or so much
thereof as shall be comprised within the mineral lease) by the Joint Venturers
during the three (3) years next following the commencement of such mining with
a view to the transport and shipment of the iron ore mined and their outline
proposals with respect to such mining and production during the next following
seven (7) years and including the location area layout design number materials
and time programme for the commencement and completion of construction or the
provision (as the case may be) of each of the following matters namely —
(i)
the port and port development including dredging and
depositing of spoil the provision of navigational aids the Joint
Venturers’ wharf (the plans and specifications for which wharf shall be
submitted to and be subject to the approval of the State) the berth and
swinging basin for the Joint Venturers’ use and port installations
facilities and services all of which shall permit of adaptation so as to
enable the use of the Joint Venturers’ wharf by vessels having an ore
carrying capacity of not less than sixty thousand (60,000) tons;
(ii)
the railway between the mining areas and the Joint
Venturers’ wharf and works ancillary to or connected with the railway
and their proposed operation including joint user conditions fencing (if any)
crossing places and grade separation or other form of acceptable protection at
intersections with public roads;
(iii)
deposits’ townsite and port townsite development
and services and facilities in relation thereto;
(iv)
housing;
(v)
water supply;
(vi)
generation transmission and distribution of electricity;
(vii)
roads;
(viii)
mining crushing screening handling transport and storage
of ore;
(ix)
air fields;
(x)
any leases licenses or other tenures of land required
from the State;
(xi)
disposal of waste materials;
(xii)
drainage;
(xiii)
dust control; and
(xiv)
any other works services or facilities proposed or
desired by the Joint Venturers and
PROVIDED THAT such proposals may with the consent of the Minister and
the consent of Hamersley provide for the use by the Joint Venturers of the
Hamersley railway between Tom Price and Dampier and such Hamersley facilities
at Dampier as Hamersley agrees to allow the Joint Venturers to use, upon
reasonable terms and conditions determined by Hamersley to export six million
(6,000,000) tons of iron ore during a period of four (4) years, at a rate not
exceeding two million (2,000,000) tons in any one (1) year, commencing not
earlier than the first day of July, 1972 and not later than the thirty-first
day of December, 1972 or as may otherwise be agreed between the Joint
Venturers and Hamersley and subject to final approval or determination of such
proposals under clause 6 hereof the obligations of the Joint Venturers under
this clause shall be modified accordingly;
(b)
(subject to the provisions of sub-clause (4) of this clause) satisfactory
evidence firstly of the making or likelihood of making a suitable contract or
suitable contracts for the sale by the Joint Venturers hereunder and shipment
from the Joint Venturers’ wharf of not less than twenty million
(20,000,000) tons of iron ore over a period of ten (10) years from the export
date from the mineral lease including not less than two million (2,000,000)
tons in the aggregate in the first two (2) years next following the export
date and not less than two million two hundred and fifty thousand (2,250,000)
tons per year in each and every year of each succeeding year thereafter
secondly of the availability of finance necessary for the fulfilment of the
Joint Venturers’ proposals under this clause and thirdly of any
necessary license to the Joint Venturers from the Commonwealth to export
hereunder iron ore the subject of the iron ore contracts in the quantities at
the rate or rates and in the years stated in the contracts PROVIDED THAT the
Joint Venturers shall not have to comply with the foregoing provisions of this
paragraph relating to the export of ore if they secure a firm order for the
supply of forty-five million (45,000,000) tons of ore to Hamersley (or some
substitute tonnage approved by the Minister) and also secure additional orders
totalling not less than twenty million (20,000,000) tons from Hamersley and/or
any other company established within the Commonwealth and approved by the
Minister.
(3) The Joint
Venturers shall have the right to submit to the Minister their detailed
proposals aforesaid in regard to a matter or matters the subject of any of the
sub-paragraphs numbered (i) to (xiv) inclusive of paragraph (a) of sub-clause
(2) of this clause as and when the detailed proposals become finalised by the
Joint Venturers PROVIDED THAT where any such matter is the subject of a
sub-paragraph which refers to more than one subject matter the detailed
proposals will relate to and cover each of the matters mentioned in the
sub-paragraph PROVIDED FURTHER that the first detailed proposals submitted to
the Minister relate to and cover the matters mentioned in sub-paragraph (i) of
paragraph (a) of sub-clause (2) of this clause and that the last two detailed
proposals submitted to the Minister relate to and cover the iron ore contracts
and the finance necessary for the iron ore export project.
(4) If the Joint
Venturers should in writing and within the time later in this sub-clause
mentioned request the Minister to grant an extension or any further extension
of time beyond the 30th day of June, 1973 or 31st day of December, 1973 as the
case may be (or such later date if any previously granted or approved by the
Minister) within which to make the iron ore contracts and then demonstrate to
the satisfaction of the Minister that the Joint Venturers have duly complied
with their other obligations hereunder have genuinely and actively but
unsuccessfully endeavoured to make the iron ore contracts on a competitive
basis and reasonably require an additional period for the purpose of making
iron ore contracts the Minister will grant such extension as is warranted in
the circumstances as follows: —
(a) for
up to six (6) months on request made within one (1) month of the 30th day of
June, 1973 or 31st day of December, 1973 as the case may be;
(b) if
an extension is granted under paragraph (a) of this sub-clause then further
for up to three (3) years on request made within one (1) month of the
expiration of the period of extension granted under the said paragraph (a);
(c) if
an extension is granted under paragraph (b) of this sub-clause then further
for up to two (2) years on request made within one (1) month of the expiration
of the period of extension granted under the said paragraph (b) unless the
Minister shows to the Joint Venturers satisfactory evidence that some third
party is able and willing if made the lessee of the mineral lease to obtain
and duly fulfil that party’s obligations under contracts for the sale of
iron ore from the leased land which contracts are comparable with iron ore
contracts under this Agreement on terms from the State not more favourable on
the whole (having regard inter alia to initial expenditure) to that party than
those applicable to the Joint Venturer’s hereunder;
subject always and in every case to the condition that the Joint Venturers
duly comply (or comply to the satisfaction of the Minister) with their other
obligations hereunder.
Consideration of proposals 4
6. (1) Within two (2)
months after receipt of the detailed proposals of the Joint Venturers in
regard to any of the matters mentioned in clause 5(2)(a) hereof the Minister
shall give to the Joint Venturers notice either of his approval of the
proposals or of alterations desired thereto and in the latter case shall
afford to the Joint Venturers opportunity to consult with and to submit new
proposals to the Minister. The Minister may make such reasonable alterations
to or impose such reasonable conditions on the proposals or new proposals (as
the case may be) as he shall think fit having regard to the circumstances
including the overall development and use (subject to the provisions of clause
8(4)(a) and (b) hereof) by others as well as the Joint Venturers but the
Minister shall in any notice to the Joint Venturers disclose his reasons for
any such alterations or conditions. Within two (2) months of the receipt of
the notice the Joint Venturers may elect by notice to the State to refer to
arbitration and within two (2) months thereafter shall refer to arbitration as
hereinafter provided any dispute as to the reasonableness of any such
alteration or condition. If by the award on arbitration the dispute is decided
against the Joint Venturers then unless the Joint Venturers within three (3)
months after delivery of the award satisfy and obtain the approval of the
Minister as to the matter or matters the subject of the arbitration this
Agreement shall on the expiration of that period of three (3) months cease and
determine (save as provided in clause 20 hereof) but if the question is
decided in favour of the Joint Venturers the decision will take effect as a
notice by the Minister that he is so satisfied with and approves the matter or
matters the subject of the arbitration.
(2) Within two (2)
months after receipt of evidence from the Joint Venturers with regard to the
matters mentioned in clause 5(2)(b) hereof to the reasonable satisfaction of
the Minister the State will give to the Joint Venturers notice either that it
is satisfied with such evidence (in which case the proposals in relation to
those matters will be deemed approved) or not in which case the State shall
afford the Joint Venturers an opportunity to consult with and to submit
further evidence to the Minister. If within thirty (30) days of receipt of
such notice further evidence has not been submitted to the Minister’s
reasonable satisfaction and his approval obtained thereto the Joint Venturers
may within a further period of thirty (30) days elect by notice to the State
to refer to arbitration as hereinafter provided and will within two (2) months
thereafter refer to arbitration any dispute as to the reasonableness of the
Minister’s decision. If by the award on arbitration the dispute is
decided against the Joint Venturers then unless the Joint Venturers within
three (3) months after delivery of the award satisfy and obtain the approval
of the Minister as to the matter or matters the subject of the arbitration
this Agreement shall on the expiration of that period cease and determine
(save as provided in sub-clause 4 of clause 7 and clause 20 hereof) but if the
question is decided in favour of the Joint Venturers the decision will take
effect as a notice by the Minister that he is so satisfied with and has
approved the matter or matters the subject of the arbitration.
(3) The Joint
Venturers shall take no steps whatsoever to implement all or any of their
proposals submitted pursuant to clause 5 hereof, unless and until the same
have been approved by the Minister.
(4) Notwithstanding
anything contained in this Agreement the State’s determination in
respect of the Joint Venturers’ proposals relating to the location of
the port and the proposals relating to the development of the port (insofar as
such development proposals concern the development of the port for use by or
in conjunction with others) and the location of the port townsite shall be
final and no such determination shall be referred to arbitration by the Joint
Venturers.
Extension of time 4
7. (1) The arbitrator,
arbitrators or umpire (as the case may be) of any submission to arbitration
hereunder is hereby empowered upon application by either party hereto to grant
any interim extension of time or date referred to herein which having regard
to the circumstances may reasonably be required in order to preserve the
rights of either or both parties hereunder and an award in favour of the Joint
Venturers may in the name of the Minister grant any further extension of time
for that purpose.
(2) Notwithstanding
that under clause 6 hereof any detailed proposals of the Joint Venturers are
approved by the State or the Minister or determined by arbitration award
unless each and every such proposal and matter is so approved or determined by
the 31st day of August, 1973 or by such extended date if any as the Joint
Venturers shall be entitled to or shall be granted pursuant to the provisions
hereof then at any time after the said 31st day of August, 1973 or if any
extension or extensions should be granted under clause 5(4) hereof or any
other provision of this Agreement then on or after the expiration of the last
of such extensions the Minister may give to the Joint Venturers twelve (12)
months notice of intention to determine this Agreement and unless before the
expiration of the said twelve (12) months period all the detailed proposals
and matters are so approved or determined this Agreement shall cease and
determine subject however to the provisions of sub-clause (4) of this clause
and clause 20 hereof.
Commencement date 4
(3) Subject to the
approval by the Minister or determination by arbitration as herein provided of
each and every of the detailed proposals and matters referred to in clause
5(2) hereof the date upon which the last of those proposals of the Joint
Venturers shall have been so approved or determined shall be the commencement
date for the purposes of this Agreement.
(4) If under any
arbitration under clause 6 hereof the dispute is decided against the Joint
Venturers and subsequently but before the commencement date this Agreement
ceases and determines the State will not for a period of three (3) years after
such determination enter into a contract with any other party for the mining
transport and shipment of iron ore from the mining areas on terms more
favourable on the whole to the other party than those which would have applied
to the Joint Venturers hereunder if the question had been determined in favour
of the Joint Venturers.
Further obligations of State 4
8. (1) As soon as
conveniently may be after the commencement date the State shall —
Mineral lease after commencement date 4
(a)
after application is made by the Joint Venturers for a mineral lease of any
part or parts (not exceeding in total area one hundred (100) square miles and
in the shape of a rectangular parallelogram or rectangular parallelograms or
as near thereto as is practicable) of the mining areas in conformity with the
Joint Venturers’ detailed proposals under clause 5(2)(a) hereof as
finally approved or determined cause any necessary survey to be made of the
land so applied for (the cost of which survey to the State will be recouped or
repaid to the State by the Joint Venturers on demand after completion of the
survey) and shall cause to be granted to the Joint Venturers a mineral lease
or mineral leases of the land so applied for (notwithstanding the survey in
respect thereof has not been completed but subject to such corrections to
accord with the survey when completed) for iron ore in the form of the
Schedule hereto for a term which subject to the payment of rents and royalties
hereinafter mentioned and to the performance and observance by the Joint
Venturers of their obligations under the mineral lease or mineral leases and
otherwise under this Agreement shall be for a period of twenty-one (21) years
commencing from the commencement date with rights to two (2) successive
renewals of twenty-one (21) years upon the same terms and conditions (but
without right to further renewal) but subject to earlier determination upon
the cessation or determination of this Agreement PROVIDED HOWEVER that the
Joint Venturers may from time to time (without abatement of any rent then paid
or payable in advance) surrender to the State all or any portion or portions,
(of reasonable size and shape) of the mineral lease or mineral leases PROVIDED
FURTHER that on or before the expiration of the term of the lease or any
renewal thereof the Joint Venturers may confer with the State with a view to
negotiating a further extension or extensions of the term of the lease on such
conditions as may be mutually agreed but the provisions of clause 39 hereof
shall not apply to this proviso. The Joint Venturers shall in any event be
entitled to continue their operations beyond the expiration of the term of the
lease or any renewal thereof for a period sufficient to enable the Joint
Venturers to fulfil any outstanding contracts approved in writing by the State
for the sale of iron ore;
(b) in
accordance with the Joint Venturers’ proposals as finally approved or
determined under clause 6 hereof and on written application by the Joint
Venturers grant to the Joint Venturers a lease or leases under the Mining Act
or if mutually agreed a lease or leases under the Land Act (notwithstanding
any of the provisions of those Acts) of such area of land for the Joint
Venturers’ railway as the Joint Venturers shall require and the Minister
may approve at a peppercorn rental and for such term or period and on such
terms and conditions (including renewal rights) as shall be reasonable having
regard to the requirements of the Joint Venturers hereunder and to the
provisions of this Agreement. The Mining Act shall be deemed to be so amended
varied and modified as to enable such lease or leases to be granted;
(c) in
accordance with the Joint Venturers’ proposals as finally approved or
determined under clause 6 hereof and to the extent that such proposals require
the State to accept obligations —
Lands 4
(i)
grant to the Joint Venturers for such terms or periods
and on such terms and conditions (including renewal rights) as subject to the
proposals (as finally approved or determined as aforesaid) shall be reasonable
having regard to the requirements of the Joint Venturers hereunder and to the
overall development of the port and access to and use by others of lands the
subject of any grant to the Joint Venturers and of services and facilities
provided by the Joint Venturers at peppercorn rental — special leases of
Crown lands within the port area the townsites and the railway; and at rentals
as prescribed by law or are otherwise reasonable — leases rights mining
tenements easements reserves and licenses in on or under Crown lands
under the Mining Act
the Jetties Act 1926 or under the provisions of the Land Act modified as in
sub-clause (2) of this clause provided (as the case may require) as the Joint
Venturers reasonably require for their works and operations hereunder
including the construction or provision of the railway the Joint
Venturers’ wharf roads airfields water supplies and stone and soil for
construction purposes; and
Services and facilities 4
(ii)
provide any services or facilities (including any
expanded services or facilities which from time to time are considered to be
reasonably necessary by the Minister) subject to the Joint Venturers bearing
and paying the capital cost involved if reasonably attributable to or
resulting from the Joint Venturers’ project and operations hereunder and
reasonable charges for maintenance and operation except operation charges in
respect of education hospital and police services and except where and to the
extent that the State otherwise agrees —
subject to such terms
and conditions as may be finally approved or determined as aforesaid PROVIDED
THAT from and after the fifteenth anniversary of the export date or the
twentieth anniversary of the date hereof whichever shall first occur (provided
that the said twentieth anniversary shall be extended one (1) year for each
year this Agreement has been continued in force and effect under clause 5(4)
hereof) the Joint Venturers will in addition to the rentals already referred
to in this paragraph pay to the State during the currency of this Agreement
after such anniversary as aforesaid a rental (which if the Joint Venturers so
request shall be allocated in respect of such one or more of the special
leases or other leases granted to the Joint Venturers hereunder and remaining
current) equal to twenty-five (25) cents per ton on all ore in respect of
which royalty is payable under clause 9(2)(h) hereof in any financial year
such additional rental to be paid within three (3) months after shipment sale
or use as the case may be of the ore SO NEVERTHELESS that the additional
rental to be paid under this proviso shall be not less than three hundred
thousand dollars ($300,000) in respect of any such year and the Joint
Venturers will within three (3) months after expiration of that year pay to
the State as further rental the difference between three hundred thousand
dollars ($300,000) and the additional rental actually paid in respect of that
year but any amount so paid in respect of any financial year in excess of the
rental payable for that year at the rate of twenty-five (25) cents per ton as
aforesaid shall be offset by the Joint Venturers against any amount payable by
them to the State above the minimum amounts payable to the State under this
paragraph in respect of the two (2) financial years immediately following the
financial year in respect of which the said minimum sum was paid; and
Other rights 4
(d) on
application by the Joint Venturers cause to be granted to them such machinery
and tailings leases (including leases for the dumping of overburden) and such
other leases licenses reserves and tenements under the Mining Act or under the
provisions of the Land Act modified as in sub-clause (2) of this clause
provided as the Joint Venturers may reasonably require and request for their
purposes under this Agreement on or near the mineral lease.
(2) For the purposes
of sub-paragraph (i) of paragraph (c) and paragraph (d) of sub-clause (1) of
this clause section 81D of the Transfer of Land Act 1893 shall not apply and
the Land Act shall be deemed to be modified by —
(a) the
substitution for subsection (2) of section 45A of the following subsection:
(2) Upon the Governor
signifying approval pursuant to subsection (1) of this section in respect of
any such land the same may subject to this section be leased;
(b) the
deletion of the proviso to section 116;
(c) the
deletion of section 135;
(d) the
deletion of section 143;
(e) the
inclusion of a power to offer for leasing land within or in the vicinity of
any townsite notwithstanding that the townsite has not been constituted a
townsite under section 10; and
(f) the
inclusion of a power to grant leases or licenses for terms or periods and on
such terms and conditions (including renewal rights) and in forms consistent
with the provisions of this Agreement in lieu of for the terms or periods and
upon the terms and conditions and in the forms referred to in the Act and upon
application by the Joint Venturers in forms consistent as aforesaid in lieu of
or in the forms referred to in the Act.
(3) The provisions of
sub-clause (2) of this clause shall not operate so as to prejudice the rights
of the State to determine any lease license or other right or title in
accordance with the other provisions of this Agreement.
(4) The State further
covenants with the Joint Venturers that the State —
Non-interference with Joint Venturers’ rights 4
(a)
shall not during the currency of this Agreement register any claim or grant
any lease or other mining tenement under the Mining Act or otherwise by which
any person other than the Joint Venturers or an associated company will obtain
under the laws relating to mining or otherwise any rights to mine or take the
natural substances (other than petroleum as defined in the Petroleum Act 1967
) within the mineral lease unless the Minister reasonably determines that it
is not likely to unduly prejudice or to interfere with the operations of the
Joint Venturers hereunder assuming the taking by the Joint Venturers of all
reasonable steps to avoid the interference;
No resumption 4
(b)
subject to the performance by the Joint Venturers of their obligations under
this Agreement shall not during the currency hereof without the consent of the
Joint Venturers resume nor suffer nor permit to be resumed by any State
instrumentality or by any local or other authority of the said State any of
the works installations plant equipment or other property for the time being
belonging to the Joint Venturers and the subject of or used for the purposes
of this Agreement nor any of the lands the subject of any lease or license
granted to the Joint Venturers in terms of this Agreement AND without such
consent (which shall not be unreasonably withheld) the State will not create
or grant or permit or suffer to be created or granted by any instrumentality
or authority of the State as aforesaid any road right-of-way or easement of
any nature or kind whatsoever over or in respect of any such lands, which may
unduly prejudice or interfere with the Joint Venturers’ operations
hereunder;
Labour requirements 4
(c)
shall if so requested by the Joint Venturers and so far as its powers and
administrative arrangements permit use reasonable endeavours to assist the
Joint Venturers to obtain adequate and suitable labour for the construction
and the carrying out of the works and operations referred to in this Agreement
including suitable immigrants for that purpose;
No discriminatory rates 4
(d)
except as provided in this Agreement shall not impose nor permit nor authorise
any of its agencies or instrumentalities or any local or other authority of
the State to impose discriminatory taxes rates or charges of any nature
whatsoever on or in respect of the titles property or other assets products
materials or services used or produced by or through the operations of the
Joint Venturers in the conduct of the Joint Venturers’ business
hereunder nor will the State take or permit to be taken by any such State
authority any other discriminatory action which would deprive the Joint
Venturers of full enjoyment of the rights granted and intended to be granted
under this Agreement;
Rights to other Minerals 4
(e)
shall where and to the extent reasonably practicable on application by the
Joint Venturers from time to time grant or assist in obtaining the grant to
the Joint Venturers of prospecting rights and mining leases with respect to
limestone dolomite and other minerals reasonably required by the Joint
Venturers for their purposes under this Agreement; and
Consents to improvements on leases 4
(f)
shall as and when required by the Joint Venturers (but without prejudice to
the foregoing provisions of this Agreement relating to the detailed proposals
and matters referred to in clause 5(2) hereof) consent in writing where and to
the extent that the Minister considers to be reasonably justified to the Joint
Venturers making improvements for the purposes of this Agreement on the land
comprised in any lease granted by the State to the Joint Venturers pursuant to
this Agreement PROVIDED THAT the Joint Venturers shall also obtain any other
consents legally required in relation to such improvements.
(5) The Joint
Venturers shall not have any tenant rights in improvements made by the Joint
Venturers on the land comprised in any lease granted by the State to the Joint
Venturers pursuant to this Agreement in any case where pursuant to clause 19
hereof such improvements will remain or become the absolute property of the
State.
(6) Notwithstanding
the provisions of section 82 of the Mining Act and of regulations 192 and 193
made thereunder and of section 81D of the Transfer of Land Act 1933 in so far
as the same or any of them may apply —
(a) no
mortgage or charge in a form commonly known as a floating charge made or given
pursuant to clause 31 hereof over any lease, license, reserve or tenement
granted hereunder or pursuant hereto by the Joint Venturers or any assignee or
appointee who has executed and is for the time being bound by deed of covenant
made pursuant to clause 31 hereof;
(b) no
transfer or assignment made or given at any time in exercise of any power of
sale contained in any such mortgage or charge;
shall require any approval or consent (other than such consent as may be
necessary under clause 31 hereof) and no such mortgage or charge shall be
rendered ineffectual as an equitable charge by the absence of any approval or
consent (otherwise than as required by clause 31 hereof) or because the same
is not registered under the provisions of the Mining Act.
Obligations of the Joint Venturers to construct 4
9. (1) The Joint
Venturers shall within a period of three (3) years next following the
commencement date at a total cost (inclusive of the cost of any rail
extensions between the mining areas and the port as may be constructed at any
time but subject to any reduction of costs resulting from the application of
the proviso to clause 5(2)(a) hereof) of not less than fifty million dollars
($50,000,000) construct (and shall actually commence construction within the
first three (3) months next following the commencement date and shall
progressively continue the construction in accordance with the reasonable
requirements of the Minister having regard to the obligation of the Joint
Venturers to complete the construction within the period specified in this
sub-clause) install provide and do all things necessary to enable them to
carry out their proposals under clause 5(2) hereof as approved by the Minister
but subject to any variation approved pursuant to clause 33 hereof and to
enable them to mine ore from the mineral lease to transport the same by rail
to the Joint Venturers’ wharf and to commence shipment therefrom in
commercial quantities in accordance with their obligations under paragraph (b)
of sub-clause (2) of clause 5 hereof and without lessening the generality of
this provision the Joint Venturers shall within the aforesaid period of three
(3) years (and in accordance with their approved proposals) —
On mining areas 4
(a)
except where already provided to the Minister’s reasonable satisfaction
construct install and provide upon the mineral lease or in the vicinity
thereof mining plant and equipment crushing screening stockpiling and car
loading plant and facilities power house workshop and other things of a design
and capacity adequate to enable the Joint Venturers to meet and discharge
their obligations hereunder and under the iron ore contracts and to mine
handle load and deal with not less than three thousand (3,000) tons of iron
ore per diem such capacity to be built up progressively to not less than ten
thousand (10,000) tons of iron ore per diem within three (3) years next
following the export date;
To commence exports 4
(b)
actually commence to mine transport by rail and ship from the Joint
Venturers’ wharf iron ore from the mineral lease so that the average
annual rate during the first two (2) years shall not be less than one million
(1,000,000) tons;
To construct railway 4
(c)
subject to the State having assured to the Joint Venturers all necessary
rights in or over Crown lands available for the purpose construct in a proper
and workmanlike manner and in accordance with recognised standards of railways
of a similar nature operating under similar conditions and along a route
approved or determined under Clause 6 hereof (but subject to the provisions of
the Public Works Act 1902 to the extent that they are applicable) a four feet
eight and one-half inches (4 ft. 8½ ins.) gauge railway (including inter
alia any necessary deviations, loops, spurs, sidings, crossings, points,
bridges, signalling, switches and other works and appurtenances) from the
mineral lease to the Joint Venturers’ wharf and shall provide for
crossing places grade separation (where appropriate) or other protective
devices including flashing lights and boom gates at major road crossings or
intersections with existing railways and operate such railway with sufficient
and adequate locomotive freight cars and other railway stock and equipment to
haul at least an average of one million (1,000,000) tons of iron ore per annum
for the first two (2) years and thereafter at least three million (3,000,000)
tons per annum to the Joint Venturers’ wharf or as required for the
purposes of this Agreement.
(2) Throughout the
continuance of this Agreement the Joint Venturers shall —
Operation of railway 4
(a)
operate their railway in a safe and proper manner and where and to the extent
that they can do so without unduly prejudicing or interfering with their
operations hereunder carry freight and transport the passengers of the State
and of third parties on the railway subject to and in accordance with by-laws
(which shall include provision for reasonable charges) from time to time to be
made altered and repealed pursuant to this Agreement and subject thereto or if
no such by-laws are made or in force then upon reasonable terms and at
reasonable charges (having regard to the cost of the railway to the Joint
Venturers) PROVIDED THAT in relation to their use of the said railway the
Joint Venturers shall not be deemed to be a common carrier at common law or
otherwise;
Compliance with laws 4
(b) in
the construction operation and maintenance and use of any work installation
plant machinery equipment service or facility provided or controlled by the
Joint Venturers comply with and observe the provisions hereof and subject
thereto the laws for the time being in force in the said State;
Maintenance 4
(c) at
all times keep and maintain in good repair and working order and condition and
where necessary replace all such works installations plant machinery and
equipment and the railway the Joint Venturers’ wharf roads (other than
the public roads referred to in clause 13 hereof) dredging and water and power
supplies for the time being the subject of this Agreement;
Shipment of and price for ore 4
(d)
subject to the provisions of this Agreement ship from the Joint
Venturers’ wharf all ore mined from the mineral lease and sold or
supplied to any other party and use their best endeavours to obtain therefor
the best price possible having regard to market conditions from time to time
prevailing and will not sell any direct shipping ore as fine ore or fines
PROVIDED THAT the provisions of this paragraph shall not apply to the sale of
iron ore to Hamersley but limited however to a quantity not exceeding in all
forty-five million (45,000,000) tons;
Access through mining areas 4
(e)
allow the State and third parties to have access (with or without stock
vehicles and rolling stock) over the mineral lease (by separate route road or
railway) PROVIDED THAT such access shall not unduly prejudice or interfere
with the Joint Venturers’ operations hereunder;
Protection for inhabitants 4
(f)
subject to and in accordance with by-laws (which shall include provision for
reasonable charges) from time to time to be made and altered pursuant to this
Agreement or if no such by-laws are made or in force then upon reasonable
terms and at reasonable charges (having regard to the cost thereof to the
Joint Venturers) allow the inhabitants for the time being of the
deposits’ townsite being employees licensees or agents of the Joint
Venturers or persons engaged in providing a legitimate and normal service to
or for the Joint Venturers or their employees licensees or agents to make use
of the water power recreational health and other services or facilities
provided or controlled by the Joint Venturers;
Use of local labour and materials 4
(g) so
far as reasonably and economically practicable use labour available within the
said State and give preference to bona fide Western Australian manufacturers
and contractors in the placement of orders for works materials plant equipment
and supplies where price quality delivery and service are equal to or better
than that obtainable elsewhere. In calling tenders and/or letting contracts
for works materials plant equipment and supplies required by them the Joint
Venturers will so call tenders quotations or by other methods of procurement
make provision that bona fide Western Australian manufacturers and contractors
are given reasonable opportunity to tender quote or otherwise be properly
considered for such works materials plant equipment and supplies;
Royalties 4
(h) pay
to the State royalty on all ore from the mineral lease shipped or sold or used
(other than ore shipped solely for testing purposes) as follows —
(i)
on direct shipping ore and on fine ore and fines where
such fine ore or fines are not sold or shipped separately as such (not being
locally used direct shipping ore fine ore or fines) at the rate of seven and
one-half per centum (7½%) of the f.o.b. revenue (computed at the rate of
exchange prevailing on date of receipt by the Joint Venturers of the purchase
price in respect of iron ore shipped or sold hereunder) PROVIDED NEVERTHELESS
that such royalty shall not be less than sixty (60) cents per ton (subject to
sub-paragraph (vi) of this paragraph) in respect of iron ore the subject of
any shipment or sale;
(ii)
on fine ore sold or shipped separately as such (not being
locally used fine ore) at the rate of three and three-quarters per centum
(3¾%) of the f.o.b. revenue (computed as aforesaid) PROVIDED NEVERTHELESS
that such royalty shall not be less than thirty (30) cents per ton (subject to
sub-paragraph (vii) of this paragraph) in respect of iron ore the subject of
any shipment or sale;
(iii)
on fines sold or shipped separately as such (not being
locally used fines) at the rate of fifteen (15) cents per ton;
(iv)
on all other iron ore (not being locally used iron ore)
at the rate of seven and one-half per centum (7½%) of the f.o.b. revenue
(computed as aforesaid) without any minimum royalty;
(v)
on all locally used iron ore at the rate of fifteen (15)
cents per ton;
(vi)
if the amount ascertained by multiplying the total
tonnage of ore shipped or sold and which is liable to royalty under
sub-paragraph (i) of this paragraph in any financial year by sixty (60) cents
is less than the total royalty which would be payable in respect of that ore
but for the operation of the proviso to that sub-paragraph then that proviso
shall not apply in respect of that ore shipped or sold in that year and at the
expiration of that year any necessary adjustments shall be made accordingly;
(vii)
if the amount ascertained by multiplying the total
tonnage of fine ore shipped or sold separately as such and which is liable to
royalty under sub-paragraph (ii) of this paragraph in any financial year by
thirty (30) cents is less than the total royalty which would be payable in
respect of that ore but for the operation of the proviso to that sub-paragraph
then that proviso shall not apply in respect of fine ore shipped or sold
separately as such in that year and at the expiration of that year any
necessary adjustments shall be made accordingly;
(viii)
on iron ore sold to Hamersley (none of which shall be
deemed to be locally used iron ore) at the rate of seven and one-half per
centum (7½%) of a f.o.b. revenue to be agreed. The f.o.b. revenue to be
established shall unless the Joint Venturers otherwise satisfy the Minister be
not less than the average f.o.b. revenue used for royalty calculation in
respect of all other exports of comparable ore from the Pilbara region at that
time PROVIDED NEVERTHELESS that such royalty shall not be less than sixty (60)
cents per ton and PROVIDED FURTHER that the provisions of clause 39 of this
Agreement shall not apply in respect of this sub-paragraph AND PROVIDED
FURTHER that Hamersley shall not be required to pay any further royalties in
respect of iron ore sold to it by the Joint Venturers;
(ix)
the royalty at the rate of fifteen (15) cents per ton
referred to in sub-paragraph (iii) of this paragraph and the royalty on
locally used iron ore and the royalty of sixty (60) cents per ton referred to
in sub-paragraph (viii) of this paragraph shall be adjusted up or down (as the
case may be) as at the first day of January, 1969, and as at the beginning of
every fifth year in accordance with any variation in the average of the basic
prices of foundry pig iron c.i.f. Australian capital city ports as announced
by B.H.P. from time to time during the calendar year immediately preceding the
date at which the adjustment is required to be made as compared with such
average for the calendar year, 1963;
For the purposes of
this paragraph “locally used iron ore” means —
(i)
iron ore used by the Joint Venturers or an associated
company within the said State for the production of pellets or for secondary
processing or in a plant for the production of metallised agglomerates iron or
steel; and
(ii)
iron ore used by any other person or company north of the
twenty-sixth parallel of latitude in the said State for the production of
pellets or for secondary processing or in a plant for the production of
metallised agglomerates iron or steel;
Payment of Royalties 4
(i)
within fourteen (14) days after the quarter days the last
days of March, June, September and December in each year commencing with the
quarter day next following the first commercial shipment of ore from the Joint
Venturers’ wharf furnish to the Minister a return showing the quantity
of all ore the subject of royalty hereunder and shipped sold or used (as the
case may be) during the quarter immediately preceding the due date of the
return and shall not later than two (2) months after such due date pay to the
Minister the royalty payable in respect of ore used and in respect of all ore
shipped or sold pay to the Minister on account of the royalty payable
hereunder a sum calculated on the basis of invoices or provisional invoices
(as the case may be) rendered by the Joint Venturers to the purchaser (which
invoices the Joint Venturers shall render without delay simultaneously
furnishing copies thereof to the Minister) of such ore and shall from time to
time in the next following appropriate return and payment make (by the return
and by cash) all such necessary adjustments (and give to the Minister full
details thereof) when the f.o.b. revenue realised in respect of the shipments
shall have been ascertained;
Rent for mineral lease 4
(j) by
way of rent for the mineral lease pay to the State annually in advance a sum
equal to thirty-five (35) cents per acre of the area for the time being the
subject of the mineral lease commencing on and accruing from the commencement
date;
Other rentals 4
(k) pay
to the State the rental referred to in the proviso to clause 8(1)(c) hereof if
and when such rental shall become payable;
Inspection 4
(l)
permit the Minister or his nominee to inspect at all reasonable times the
books of account and records of the Joint Venturers relative to any shipment
sale or use of ore hereunder, including sale contracts and to take copies or
extracts therefrom and for the purposes of determining the royalty payable
hereunder or the f.o.b. revenue payable in respect of any shipment of ore
hereunder the Joint Venturers will take reasonable steps to satisfy the State
either by certificate of a competent independent party acceptable to the State
or otherwise to the Minister’s reasonable satisfaction as to all
relevant weights and analyses and will give due regard to any objection or
representation made by the Minister or his nominee as to any particular weight
or assay of ore which may affect the amount of royalty payable hereunder; and
Export to places outside the Commonwealth 4
(m)
ensure that unless with the prior written approval of the Minister to do
otherwise all ore shipped pursuant to this Agreement will be off-loaded at a
place outside the Commonwealth and if they fail so to ensure the Joint
Venturers will subject to the provisions of this paragraph be in default
hereunder. Where any such shipment is off-loaded within the Commonwealth
without such prior written approval the Joint Venturers shall forthwith on
becoming aware thereof give to the State notice of the fact and pay to the
State in respect of the ore the subject of the shipment such further and
additional rental calculated at a rate not exceeding one dollar ($1) per ton
of the ore as the Minister shall demand without prejudice however to any other
rights and remedies of the State hereunder arising from the breach by the
Joint Venturers of the provisions hereof. If ore is shipped and such ore is
off-loaded in the Commonwealth the Joint Venturers will not be deemed to be in
default hereunder if they take appropriate action to prevent a recurrence of
such an off-loading PROVIDED FURTHER that the foregoing provisions of this
paragraph shall not apply —
(i)
in any case (including any unforeseeable diversion of the
vessel for necessary repairs or arising from force majeure or otherwise) where
the Joint Venturers could not reasonably have been expected to take steps to
prevent that particular off-loading; and
(ii)
where such ore as aforesaid is processed into metallised
agglomerates iron or steel at a place within the Commonwealth;
Protection of National Park Reserve 4
(n) so
conduct their operations hereunder as to meet the reasonable requirements of
the State in preserving and protecting National Park Reserve No. 30082;
Port townsite air field 4
(o) pay
to the State or local authority concerned a sum or sums towards the cost of
expanding the capacity of any existing air field near the port townsite to
cater for the additional air traffic resulting from the implementation of the
Joint Venturers’ proposals hereunder;
Other works and facilities 4
(p)
provide any other works service facilities buildings or equipment necessary
for carrying out the Joint Venturers’ obligations hereunder.
By-laws 4
(3) The Governor in
Executive Council may upon recommendation by the Joint Venturers make alter
and repeal by-laws for the purpose of enabling the Joint Venturers to fulfil
the obligations under paragraph (a) of sub-clause (1) of this clause and under
clause 11 hereof and (unless and until the port townsite is declared a
townsite pursuant to section 10 of the Land Act) under paragraph (f) of
sub-clause (1) of this clause and under clauses 14 and 15 hereof upon terms
and subject to conditions (including terms and conditions as to user charging
and limitation of the liability of the Joint Venturers) as set out in such
by-laws consistent with the provisions hereof. Should the State at any time
consider that any by-law made hereunder has as a result of altered
circumstances become unreasonable or inapplicable then the Joint Venturers
shall recommend such alteration or repeal thereof as the State may reasonably
require or (in the event of there being any dispute as to the reasonableness
of such requirement) then as may be decided by arbitration hereunder.
Port and Joint Venturers’ Wharf 4
10. (1) The Joint
Venturers shall develop the port, construct the Joint Venturers’ wharf
and carry out all necessary dredging of approach channels, swinging basin and
berth at the Joint Venturers’ wharf and provide all necessary buoys,
beacons, markers, navigational aids, lighting equipment and services and
facilities in accordance with the Joint Venturers’ relevant approved
proposal hereunder.
(2) Notwithstanding
the provisions of sub-clause (1) of this clause, the parties recognise that it
may be advantageous for the State to provide all or any of the works
thereunder mentioned and in such case the parties hereto shall together with
other users and potential users of the port confer as to the manner in and the
conditions upon which the State should provide such works to the mutual
advantage of all. The Joint Venturers shall pay to the State a sum or sums to
be agreed (not exceeding the amount that would have been payable had the Joint
Venturers carried out the said works) towards the cost of the said works
provided by the State.
Use of Wharf and Facilities 4
11. (1) The Joint
Venturers shall subject to and in according with by-laws (which shall include
provision for reasonable charges) from time to time to be made and altered as
provided in sub-clause (3) of clause 9 hereof and subject thereto, or if no
such by-laws are made or in force then upon reasonable terms and at reasonable
charges (having regard to the cost thereof to the Joint Venturers) allow the
State and third parties to use the Joint Venturers’ wharf and port
installations wharf machinery and equipment and wharf and port services and
port facilities constructed or provided by it PROVIDED THAT such use shall not
unduly prejudice or interfere with the Joint Venturers’ operations
hereunder and that such use shall be subject to the prior approval of the
Joint Venturers.
(2) Subject to the
provisions of clause 22 hereof nothing in this Agreement shall be construed to
limit the application of the Shipping and Pilotage Act 1967 .
Harbour Channel approach provisions 4
12. (a)
The parties hereto acknowledge that some party other than the Joint Venturers
(which party is hereinafter in this clause referred to as “the other
party”) may have already agreed or will agree with the State for the
mining transport and export of iron ore from within an area or areas of the
said State other than the mining areas and that it may be further agreed or
determined that such export will be from the port. In this event and
notwithstanding the approval or determination of all or any of the detailed
proposals hereunder the parties hereto acknowledge that the State may require
that only one channel approach to the port shall be dredged to serve the
interests of the Joint Venturers and of the other party as well as of other
users of the port but that it will depend upon circumstances (including the
depth and width of the channel approach and the respective time programmes for
the dredging as desired by the Joint Venturers and the other party under and
for the purposes of their respective agreements with the State) whether that
channel approach shall be dredged by the Joint Venturers or by the other party
or partly by each or under some other arrangements with a view to the joint
user of the whole or part of the channel approach;
(b) the
parties hereto acknowledge the principle that whichever of the Joint Venturers
and the other party should incur the whole or the greater capital outlay (as
the case may be) for the dredging or should be responsible for the operation
and maintenance of the channel approach (insofar as it is or is intended to be
used by the other of them) should in the event of such use occurring within a
period of seven (7) years from the commencement date be reimbursed by the
other of them such a fair and reasonable proportion of the capital outlay and
operation and maintenance costs respectively for the use of the channel
approach or otherwise a fair and reasonable charge for such use as may be
determined by mutual agreement between the parties concerned or failing
agreement by arbitration under the provisions of the Arbitration Act 1895 if
those parties agree within a time to be fixed by the Minister to submit to
arbitration and failing such agreement then as determined by the Minister;
(c) if
in the circumstances referred to in paragraph (b) of this clause the other
party is the party to be re-imbursed then the Joint Venturers hereby agree on
demand made by the State to pay the amount of such reimbursement (determined
as aforesaid) to the State for and on behalf of the other party;
(d) if
in the circumstances referred to in paragraph (b) of this clause the Joint
Venturers are the party to be re-imbursed then during a period not exceeding
seven (7) years from the commencement date the State agrees not to permit
vessels of the other party of which notice is given to the State by the Joint
Venturers to enter the port through the channel approach and then to load iron
ore in bulk unless and until the other party has made arrangements reasonably
satisfactory to the Joint Venturers (to be determined by agreement arbitration
or the Minister as aforesaid) for a fair and reasonable contribution to
capital outlay and operation and maintenance costs incurred or to be incurred
by the Joint Venturers as aforesaid or for the payment of a fair and
reasonable charge;
(e) the
State acknowledges and agrees with the Joint Venturers that in the event of
the Joint Venturers incurring the whole or the greater capital outlay or
operation and maintenance costs as aforesaid then vessels (other than vessels
employed for the Joint Venturers’ or other party’s purposes) using
the channel approach for the export from the port of more than half a million
tons a year of bulk commodities (or such lesser tonnages as the Minister may
direct from time to time either generally or in any particular case) should
during a period not exceeding seven (7) years from the commencement date be
required to pay to the Joint Venturers (or the State should be required to pay
to the Joint Venturers from the moneys received from such vessels) fair and
reasonable charges to be agreed by the parties hereto having regard to the
circumstances including the aggregate tonnage of the commodities exported or
to be exported from the port the rate of export and the capital outlay and
operation and maintenance costs incurred and/or to be incurred by the Joint
Venturers;
(f) the
Joint Venturers acknowledge and hereby agree with the State that the Joint
Venturers will not be entitled to the payment of any moneys in respect of the
use of the channel approach by vessels other than those referred to in the
foregoing provisions of this clause but that in respect of such other vessels
the State shall be entitled to retain all charges and other revenue received
in respect of such use;
(g) the
Joint Venturers also agree with the State that notwithstanding any lease
granted to them by the State of the whole or part of the channel approach the
State or the other party may at any time after notice to the Joint Venturers
deepen or widen the channel approach for which purpose the Joint Venturers
will on request by the State surrender without compensation so much of the
lease of the channel approach as may be required for the purpose PROVIDED
HOWEVER that the Joint Venturers will be entitled to a reasonable time within
which to complete any firm contract for the dredging of the channel approach
actually made by them (pursuant to the consent of the State or the
determination by arbitration) but unfulfilled at the time of the giving of
such notice in respect of the widening or deepening of the dredging of the
channel approach.
Roads 4
13. (1) The Joint
Venturers shall subject to the State having assured to the Joint Venturers all
necessary rights in or over Crown lands or reserves available for the purpose
at their own cost and expense and in accordance with their proposals as
approved hereunder construct such new roads as the Joint Venturers may
reasonably require for the purposes of this Agreement, such roads to be of
such widths, of such materials, with such gates and warning devices, crossings
(level or grade separated where warranted) and pass-overs for cattle and for
sheep and along such routes as the parties hereto shall agree after
consideration of the requirements of the respective shire councils through
whose districts any such roads may pass and after prior consultation with the
Minister. Except to the extent that the Joint Venturers’ relevant
proposal as finally approved or determined under clause 6 hereof otherwise
provides, the Joint Venturers shall allow the public to use free of charge any
roads constructed or up-graded under this sub-clause PROVIDED THAT such use
shall not unduly prejudice or interfere with the Joint Venturers’
operations hereunder.
(2) The Joint
Venturers shall have the right to use any public roads that may from time to
time exist in the area of their operations under this Agreement both prior to
the commencement date and also in the course of the Joint Venturers’
operations hereunder. If the exercise by the Joint Venturers of such right
results in or is likely to result in intensive use of any public road whereby
excessive damage or deterioration is caused thereto or whereby that road
becomes inadequate for use by the Joint Venturers and the public, the Joint
Venturers will upon demand (except where and to the extent that the
Commissioner of Main Roads or the local or other authority agrees to bear the
whole or part of such cost) pay to the State or the local authority concerned
or other authority having control of such road the cost of preventing or
making good such damage or deterioration or of up-grading the road to a
standard commensurate with the increased traffic.
(3) If required by the
Joint Venturers the State shall at the Joint Venturers’ cost and expense
(except where and to the extent that the Commissioner of Main Roads agrees to
bear the whole or any part of the cost) widen up-grade or realign any public
road existing from time to time which the Joint Venturers desire to use for
their operations hereunder over which the State has control subject to the
prior approval of the Commissioner of Main Roads to the proposed work.
Water 4
14. (1) The Joint
Venturers shall give to the State not less than two (2) years notice of their
estimated water consumption at the port and port townsite (which amounts or
such other amounts as shall be agreed between the parties hereto are
hereinafter called “the Joint Venturers’ coastal water
requirements”).
(2) Upon receipt of
such notice the State shall in collaboration with the Joint Venturers and in
accordance with a mutually agreed programme and budget at the expense of the
Joint Venturers search for suitable subterranean water sources in areas agreed
to by the parties hereto.
(3) In the event that
the search referred to in sub-clause (2) of this clause identifies and proves
subterranean water sources which are mutually agreed to be adequate to supply
the Joint Venturers’ coastal water requirements the State shall, in
accordance with a mutually agreed programme and budget, construct or arrange
to have constructed at the Joint Venturers’ expense all bores, valves,
pipelines, meters, tanks, equipment and appurtenances necessary to supply the
Joint Venturers’ coastal water requirements.
(4) If, within six
months of the commencement of the respective negotiations between the parties
pursuant to sub-clause (2) and sub-clause (3) of this clause towards agreeing
a programme and budget, the parties have not reached agreement, then the
latest proposal of the State with respect to such programme and budget shall
be deemed to be mutually agreed for the purposes of this clause PROVIDED such
agreement shall not prejudice the Joint Venturers’ right to require the
State to undertake supplementary water studies in the areas agreed pursuant to
sub-clause (2) of this clause, as the Joint Venturers may require and at the
Joint Venturers’ expense.
(5) The State may in
its discretion construct the water supply facilities or any related works or
appurtenances mentioned in sub-clause (3) of this clause to achieve a capacity
greater than that needed to meet the Joint Venturers’ coastal water
requirements and in that event the Joint Venturers shall pay to the State a
sum or sums to be agreed between the parties hereto as being the Joint
Venturers’ fair share of the cost of providing the said facilities works
or appurtenances.
(6) The State shall
supply to the Joint Venturers from sources developed by the State pursuant to
sub-clauses (3) and (5) of this clause water up to an amount and at a rate not
less than that set forth in the notice given pursuant to sub-clause (1) of
this clause PROVIDED HOWEVER that should such sources prove hydrologically
inadequate to meet the Joint Venturers’ coastal water requirements the
State may limit the amount of water which may be taken from such sources at
any one time or from time to time to the maximum which such sources are
hydrologically capable of meeting as aforesaid.
(7) The Joint
Venturers shall give to the State not less than six (6) months notice in
respect of their requirements of water both at the townsite and within the
mineral lease to implement their obligations hereunder (which amounts or such
other amounts as shall be agreed between the parties hereto are hereinafter
called “the Joint Venturers’ inland water requirements”).
(8) The Joint
Venturers shall in collaboration with the State search for and make
investigations to establish the availability of suitable subterranean water
sources within the mineral lease or at other locations approved by the State
and will employ and retain experienced ground water consultants where
appropriate and will furnish the Minister with copies of the
consultants’ reports or alternatively if so requested by the Joint
Venturers the State shall carry out the said search and investigations at the
Joint Venturers’ expense.
(9) The Joint
Venturers shall provide and construct at their expense to standards and in
accordance with designs approved by the State in accordance with their
relevant proposals all necessary bores valves pipelines meters tanks equipment
and appurtenances necessary to draw transport use and dispose of water drawn
from sources licensed to the Joint Venturers.
(10) The Joint
Venturers shall make application to the State for a license to draw water up
to an amount and at a rate not less than that set forth in the notice given
pursuant to sub-clause (7) hereof from suitable subterranean water sources
identified pursuant to the search and investigation referred to in sub-clause
(8) of this clause and as are agreed to be adequate and the State shall grant
to the Joint Venturers such license PROVIDED HOWEVER that should such sources
prove hydrologically inadequate to meet the Joint Venturers’ inland
water requirements, the State may limit the amount of water which may be taken
from such sources at any one time or from time to time to the maximum which
such sources are hydrologically capable of meeting as aforesaid.
(11) If during the
currency of a license granted under the provisions of this clause the Minister
is of the opinion that it is desirable that the sources of water licensed to
the Joint Venturers and the water supply facilities established by the Joint
Venturers pursuant to sub-clause (9) of this clause be made available to the
State for such purposes, inter alia , as water conservation, water management,
utilisation of unused hydrological capacity, supply of water to third parties
where such supply will not unduly prejudice the Joint Venturers’
operations hereunder and establishment of a regional water supply system
incorporating the area of operations of the Joint Venturers, the Minister
shall, after first affording the Joint Venturers an opportunity to consult
with the Minister, so notify the Joint Venturers and the Joint Venturers shall
after the expiration of six (6) months from the date of such notice relinquish
to the State the ownership control and operation of the said water supply
facilities. The State shall thereupon assume the ownership control and
operation of the said water supply facilities and shall revoke all relevant
licenses previously issued to the Joint Venturers for the purpose of enabling
them to draw subterranean water. The State shall not be liable to pay the
Joint Venturers compensation in respect of the water supply facilities
relinquished or the licenses revoked. Immediately after the revocation of such
licenses the State shall, subject only to the continued hydrological
availability of water from such sources previously licensed to the Joint
Venturers, commence and thereafter continue to supply water to an amount and
at a rate required by the Joint Venturers being the amount and rate to which
the Joint Venturers were entitled under such revoked license and the proviso
to sub-clause (10) of this clause shall in like manner apply to this
sub-clause.
(12) The State may in
its discretion develop any district or regional water supply and for the
purposes thereof construct any works of the kind mentioned in sub-clause (9)
of this clause to a greater capacity than that required to supply the Joint
Venturers’ inland water requirements but in that event the cost of the
works as so enlarged shall be shared by the parties hereto in such manner as
may be agreed to be fair in all the circumstances.
(13) The Joint
Venturers shall design and construct their plant and facilities for the mining
handling processing and transportation of ore so that as far as practicable
non potable water may be used therein.
(14) The Joint
Venturers shall pay to the State for water supplied by it pursuant to this
clause a fair price to be negotiated between the parties hereto which shall be
equal to the actual costs incurred by the State in supplying water to the
Joint Venturers including operating maintenance and overhead costs and a
provision for replacement of the water supply facilities. Notwithstanding the
foregoing in respect of water supplied by the State to the Joint Venturers for
domestic purposes the Joint Venturers shall pay to the State therefor charges
as levied from time to time pursuant to the provisions of the Country Areas
Water Supply Act 1947 .
(15) The State may
grant to a third party rights to draw water from sources from which the Joint
Venturers draw water always provided however that —
(a)
where the Joint Venturers have paid (in whole or in part) any moneys in
respect of the investigation proving development and utilisation of such
sources as provided pursuant to this clause, the State shall require as a
condition of such grant that where such third party is or will be a
substantial user of water that party shall re-imburse to the Joint Venturers a
proportion of such moneys as the Minister determines is fair and reasonable
having regard inter alia to the proportion which that party’s actual or
potential requirements for water bears to the total capacity of such sources;
and
(b)
where the Joint Venturers draw from a source developed wholly at their expense
pursuant to this clause, the State shall ensure that it is a condition of such
grant to third parties that in the event that the capacity of the source is
reduced, such reduction shall be first applied to such third parties and
thereafter if further reduction is necessary the State’s and the Joint
Venturer’s requirements shall be reduced in such proportion as may be
agreed.
(16) Without prejudice
to the provisions of sub-clause (10) of this clause the Joint Venturers shall
collaborate with the State in an investigation of surface water, catchments
and storage dams should water supplies from available underground sources
prove insufficient to meet the Joint Venturers’ coastal water
requirements and the Joint Venturers’ inland water requirements and the
Joint Venturers shall if they propose to utilise such water catchments and/or
storage dams pay to the State a sum or sums to be agreed towards the cost of
such investigation and towards the cost of constructing any water storage dam
or dams and reticulation facilities required PROVIDED THAT the State may in
its sole discretion elect to construct a water storage dam or dams and
reticulation facilities having a capacity in excess of that required to supply
the Joint Venturers’ needs and in that event the Joint Venturers’
contribution shall be limited to a fair and reasonable proportion of the total
cost of constructing such water storage dam or dams and reticulation
facilities.
(17) Any reference in
this clause to a license is a reference to a license under the
Rights in Water and Irrigation Act 1914 and the provisions of that Act
relating to water rights and licenses shall except where inconsistent with the
provisions of this Agreement apply to any water sources developed for the
Joint Venturers’ purposes under this Agreement.
Electricity 4
15. (1) The Joint
Venturers shall in accordance with their proposals as approved construct
without cost or expense to the State facilities for the generation and
transmission of electricity needed to enable the Joint Venturers to carry out
their obligations hereunder. The Joint Venturers shall design and construct
their electrical generation plant equipment and transmission system so as to
facilitate the ultimate connection of such plant equipment and transmission
system with facilities owned by the State Electricity Commission or other
third parties.
(2) The State may at
any time give to the Joint Venturers twelve months’ notice of its
intention to acquire and may thereafter acquire the Joint Venturers’
electrical generation plant equipment and transmission system or any of them
up to the first point of voltage breakdown or such other appropriate point as
may be agreed, at a price to be agreed between the parties and the Joint
Venturers will take all such steps as may be necessary to give effect to the
acquisition. The State undertakes that in such event the Joint Venturers shall
have first priority for their purposes hereunder on the power generated by
such plant and equipment or capable of being transmitted along such systems
and the State guarantees subject only to its inability to supply power for any
of the reasons set forth in clause 37 hereof to supply the Joint Venturers
with power for all their purposes hereunder up to the normal continuous full
load capacity of such plant and equipment and the State undertakes that in the
event of such inability to supply power the State shall take all possible
steps to restore such supply regardless of the time or day when such inability
to supply power arises and may call upon the Joint Venturers to provide
employees for that purpose.
(3) In the event of
the State acquiring the Joint Venturers’ facilities or any of them as
provided by sub-clause (2) of this clause the Joint Venturers shall pay to the
State Electricity Commission the cost of all electricity supplied to the Joint
Venturers by the Commission at a rate equal to the standard tariff applying
from time to time to the Commission’s system less the difference (if
any) between the Commission’s standard tariff in force at the time of
the State’s acquisition of the facilities pursuant to subclause (2) of
this clause and the Joint Venturers’ costs of operating those facilities
(including inter alia appropriate capital charges) at the time of the said
acquisition. The Commission’s rate for electricity calculated as
aforesaid shall apply to an amount of electricity equal to the continuous full
load capacity of the facilities so acquired and the Joint Venturers shall pay
for all electricity supplied to them by the Commission in excess of such
amount at the Commissions standard tariff applicable from time to time.
Deposits’ Townsite 4
16. (1) The Joint
Venturers shall collaborate with the State in the planning, location and
development of the deposits’ townsite and shall employ an experienced
town planner to prepare a town plan for initial and long-term town development
which town plan shall be submitted by the Joint Venturers as part of proposals
pursuant to clause 5(3)(c) hereof.
(2) The Joint
Venturers shall, at their cost in accordance with the relevant approved
proposal, provide and maintain at the deposits’ townsite and make
available —
(i)
at such prices, rentals or charges and upon such terms
and conditions as are fair and reasonable under the circumstances, housing
accommodation, services and works including sewerage reticulation and
treatment works, water supply works, main drainage works and civic facilities;
and
(ii)
without charge, public roads and buildings and other
works and equipment required for educational, hospital, medical, police,
recreation, fire or other services,
to the extent to which any of the foregoing are necessary to provide for the
needs of persons and the dependants of such persons engaged in connection with
the Joint Venturers’ operations hereunder whether or not employed by the
Joint Venturers.
(3) The Joint
Venturers shall at their cost equip the buildings referred to in sub-clause
(2) of this clause to a standard normally adopted by the State in similar
types of buildings in comparable townsites.
(4) The Joint
Venturers shall provide at their cost adequate housing accommodation for
married and single staff directly connected with the educational, hospital,
medical and police services referred to in sub-clause (2)(ii) of this clause.
(5) The extent of the
obligations of the Joint Venturers pursuant to sub-clauses (3) and (4) of this
clause shall be determined by the proportion which the Joint Venturers’
contribution to the cost of the facilities and services set forth in subclause
(2) of this clause bears to the total cost of such facilities and services.
Existing towns 4
17. The Joint Venturers shall as the occasion may
require enter into negotiations with the State with a view to achieving the
assimilation into a suitable existing coastal town of such of the Joint
Venturers’ work force at the port or any other workers employed by the
Joint Venturers (including the dependants of such persons) as shall reside at
or near or shall frequent the port. Subject to the provisions of clause 18
hereof the Joint Venturers shall pay to the State or the appropriate authority
the capital cost of establishing and providing additional services and
facilities and associated equipment including sewerage and water supply
schemes, main drains, education, police and hospital services to the extent to
which those additional works and services are made necessary in that town as a
result of the operations of the Joint Venturers. The additional services,
works and associated equipment referred to in this clause shall be provided by
the State to a standard normally adopted by the State in providing new
services works and associated equipment in similar cases in comparable towns.
Additional Proposals 4
18. (1) In the event
that the Joint Venturers desire —
(a) to
expand their activities beyond those specified in the Joint Venturers’
proposals as approved pursuant to clause 6 hereof; or
(b) to
undertake secondary processing; or
(c) to
undertake the production of steel,
the Joint Venturers shall so notify the Minister who may, consequent upon the
outcome of the negotiations of the parties pursuant to subclause (2) of this
clause, require the Joint Venturers to submit proposals in respect of all or
any of the matters referred to in subparagraphs (i) to (xiv) of paragraph (a)
of subclause (2) of clause 5 hereof and in clauses 16 and 17 hereof and the
Joint Venturers shall to the extent of such requirement submit such proposals.
The provisions of clauses 5, 6, 16 and 17 hereof shall, so far as they are
applicable, apply to such proposals mutatis mutandis .
(2) The extent to
which the Joint Venturers will be required to provide or contribute towards
the capital costs of services and facilities and the maintenance thereof
pursuant to clauses 16 and 17 hereof in consequence of such proposed expansion
or undertaking shall be determined by the Minister following negotiations on
such matters and in making his determination the Minister shall have regard
inter alia to the current and anticipated composition of the town and the
extent to which the ordinary responsibilities of the State with respect to the
provision of the capital cost of such services and facilities are to be
assumed by it in the light of the State’s then current capital
resources.
Determination of Agreement 4
19. In any of the following events namely if the
Joint Venturers shall make default in the due performance or observance of any
of the covenants or obligations to the State herein or in any lease sub-lease
license or other title or document granted or assigned under this Agreement on
their part to be performed or observed and shall fail to remedy that default
within reasonable time after notice specifying the default is given to them by
the State (or if the alleged default is contested by the Joint Venturers and
promptly submitted to arbitration within a reasonable time fixed by the
arbitration award where the question is decided against the Joint Venturers
the arbitrator finding that there was a bona fide dispute and that the Joint
Venturers had not been dilatory in pursuing the arbitration) or if the Joint
Venturers shall abandon or repudiate their operations under this Agreement or
if either of the Joint Venturers shall go into liquidation (other than a
voluntary liquidation for the purposes of reconstruction) and unless within
three months from the date of such liquidation the other Joint Venturer
acquires absolutely the share estate and interest of the Joint Venturer (in
liquidation) in or under this Agreement and in or under the mineral lease and
any other lease license easement or right granted hereunder or pursuant hereto
then and in any of such events the State may by notice to the Joint Venturers
determine this Agreement and the rights of the Joint Venturers hereunder and
under any lease license easement or right granted hereunder or pursuant hereto
or if the Joint Venturers shall surrender the entire mineral lease as
permitted under clause 8(1)(a) this Agreement and the rights of the Joint
Venturers hereunder and under any lease license easement or right granted
hereunder or pursuant hereto shall thereupon determine; PROVIDED HOWEVER that
if the Joint Venturers shall fail to remedy any default after such notice or
within the time fixed by the arbitration award as aforesaid the State instead
of determining this Agreement as aforesaid because of such default may itself
remedy such default or cause the same to be remedied (for which purpose the
State by agents workmen or otherwise shall have full power to enter upon lands
occupied by the Joint Venturers and to make use of all plant machinery
equipment and installations thereon) and the costs and expenses incurred by
the State in remedying or causing to be remedied such default shall be a debt
payable by the Joint Venturers to the State on demand.
Effect of determination of Agreement 4
20. On the cessation or determination of this
Agreement —
(a)
except as otherwise agreed by the Minister the rights of the Joint Venturers
to in or under this Agreement and the rights of the Joint Venturers or of any
assignee of the Joint Venturers or any mortgagee to in or under the mineral
lease and any other lease license easement or right granted hereunder or
pursuant hereto shall thereupon cease and determine but without prejudice to
the liability of either of the parties hereto in respect of any antecedent
breach or default under this Agreement or in respect of any indemnity given
hereunder;
(b) the
Joint Venturers shall forthwith pay to the State all moneys which may then
have become payable or accrued due;
(c) the
Joint Venturers shall forthwith furnish to the State complete factual
statements of the work research surveys and reconnaissances carried out
pursuant to clause 4(1) hereof if and insofar as the statements may not have
been so furnished; and
(d) save
as aforesaid and as provided in clause 7(4) hereof and in clause 21 hereof
neither of the parties hereto shall have any claim against the other of them
with respect to any matter or thing in or arising out of this Agreement.
Effect of determination of lease 4
21. On the cessation or determination of any lease
license or easement granted hereunder by the State to the Joint Venturers or
(except as otherwise agreed by the Minister) to an associated company or other
assignee of the Joint Venturers under clause 31 hereof of land for the Joint
Venturers’ wharf for any installation within the port for the Joint
Venturers’ railway or for housing at the port or port townsite the
improvements and things other than plant equipment and removable buildings
erected on the relevant land and provided for in connection therewith shall
remain or become the absolute property of the State without compensation and
freed and discharged from all mortgages and encumbrances and the Joint
Venturers will do and execute such documents and things (including surrenders)
as the State may reasonably require to give effect to this provision. In the
event of the Joint Venturers immediately prior to such expiration or
determination or subsequent thereto deciding to remove its locomotives rolling
stock plant equipment and removable buildings or any of them from any land
they shall not do so without first notifying the State in writing of their
decision and thereby granting to the State the right or option exercisable
within three (3) months thereafter to purchase at valuation in situ the said
plant equipment and removable buildings or any of them. Such valuation shall
be mutually agreed or in default of agreement shall be made by such competent
valuer as the parties may appoint or failing agreement as to such appointment
then by two competent valuers one to be appointed by each party or by an
umpire appointed by such valuers should they fail to agree.
No charge for the handling of cargoes 4
22. The State shall ensure that subject to the
Joint Venturers at their expense providing all works buildings dredging and
things of a capital nature reasonably required for their operations hereunder
at or in the vicinity of the port no charge or levy shall be made by the State
or by any State authority in relation to the loading of outward or the
unloading of inward cargoes from the Joint Venturers’ wharf whether such
cargoes shall be the property of the Joint Venturers or of any other person or
corporation but the State accepts no obligation to undertake such loading or
unloading and may make the usual charges from time to time prevailing in
respect of services rendered by the State or by any State agency or
instrumentality or other local or other authority of the State and may charge
vessels using the Joint Venturers’ wharf ordinary light conservancy and
tonnage dues.
Zoning 4
23. The State shall ensure that the mineral lease
and the lands the subject of any lease license or easement granted to the
Joint Venturers under this Agreement shall be and remain zoned for use or
otherwise protected during the currency of this Agreement so that the
operations of the Joint Venturers hereunder may be undertaken and carried out
thereon without any interference or interruption by the State by any State
agency or instrumentality or by any local or other authority of the State on
the ground that such operations are contrary to any zoning by-law or
regulation.
Rentals and evictions 4
24. The State shall ensure that any State
legislation for the time being in force in the said State relating to the
fixation of rentals shall not apply to any houses belonging to the Joint
Venturers in the port townsite and the deposits’ townsite and that in
relation to each such house the Joint Venturers shall have the right to
include as a condition of its letting thereof that the Joint Venturers may
take proceedings for eviction of the occupant if the latter shall fail to
abide by and observe the terms and conditions of occupancy or if the occupant
shall cease to be employed by the Joint Venturers.
Labour conditions 4
25. The State shall ensure that during the
currency of this Agreement and subject to compliance with its obligations
hereunder the Joint Venturers shall not be required to comply with the labour
conditions imposed by or under the Mining Act in regard to the mineral lease.
Sub-contracting 4
26. Without affecting the liabilities of the
parties under this Agreement either party shall have the right from time to
time to entrust to third parties the carrying out of any portions of the
operations which it is or they are authorised or obliged to carry out
hereunder.
Rating 4
27. The State shall ensure that notwithstanding
the provisions of any Act or anything done or purported to be done under any
Act the valuation of all lands (whether of a freehold or leasehold nature) the
subject of this Agreement (except as to any part upon which a permanent
residence shall be erected or which is occupied in connection with that
residence and except as to any part upon which there stands any improvements
that are used in connection with a commercial undertaking not directly related
to the mining treatment and processing of ore, which excepted parts shall be
subject to the provisions of the Local Government Act) shall for rating
purposes be deemed to be on the unimproved value thereof and no such lands
shall be subject to any discriminatory rate, PROVIDED THAT nothing in this
clause shall prevent the Joint Venturers making the election provided for by
Section 533B of the Local Government Act 1960 .
Liability of Joint Venturers 4
28. It is hereby agreed and declared that —
(a) for
the purposes of determining whether and to the extent to which —
(i)
the Joint Venturers are liable to any person or body
corporate (other than the State); or
(ii)
an action is maintainable by any such person or body
corporate
in respect of the
death or injury of any person or damage to any property arising out of the use
of any of the roads for the maintenance of which the Joint Venturers are
responsible hereunder and for no other purpose the Joint Venturers shall be
deemed to be a municipality and the said roads shall be deemed to be streets
under the care control and management of the Joint Venturers;
(b) for
the purposes of this paragraph the terms “municipality”
“street” and “care control and management” shall have
the meanings which they respectively have in the Local Government Act 1960 .
Environmental Protection 4
29. Nothing in this Agreement shall be construed
to exempt the Joint Venturers from compliance with any requirement in
connection with the protection of the environment arising out of or incidental
to the Joint Venturers’ operations hereunder that may be made pursuant
to any Act from time to time in force by the State or by any State agency or
instrumentality or any local or other authority or statutory body of the
State.
Indemnity 4
30. The Joint Venturers will indemnify and keep
indemnified the State and its servants agents and contractors in respect of
all actions suits claims demands or costs of third parties arising out of or
in connection with any work carried out by the Joint Venturers pursuant to
this Agreement or relating to their operations hereunder or arising out of or
in connection with the construction maintenance or use by the Joint Venturers
or their servants agents contractors or assignees of the Joint
Venturers’ wharf railway or other works or services the subject of this
Agreement or the plant apparatus or equipment installed in connection
therewith and will also indemnify and keep indemnified the State against all
actions suits compensation claims demands or costs by third parties under the
Ratifying Act the Public Works Act 1902 the Land Act or any other Act in
respect of or as a consequence of the resumption or deprivation of the use of
any land where such resumption or deprivation of use is made or done by the
State for the purpose of granting to the Joint Venturers a lease right mining
tenement easement reserve or license pursuant to clause 8(1) hereof.
Assignment 4
31. (1) Subject to the
provisions of this clause the Joint Venturers may at any time —
(a)
assign mortgage charge sublet or dispose of to an associated company as of
right and to any other company or person with the consent in writing of the
Minister the whole or any part of the rights of the Joint Venturers hereunder
(including their rights to or as the holder of any lease license easement
grant or other title) and of the obligations of the Joint Venturers hereunder;
and
(b)
appoint as of right an associated company or with the consent of the Minister
any other company or person to exercise all or any of the powers functions and
authorities which are or may be conferred on the Joint Venturers hereunder;
subject however to the assignee or (as the case may be) the appointee
executing in favour of the State a deed of covenant in a form to be approved
by the Minister to comply with observe and perform the provisions hereof on
the part of the Joint Venturers to be complied with observed or performed in
regard to the matter or matters so assigned or (as the case may be) the
subject of the appointment.
(2) Notwithstanding
anything contained in or anything done under or pursuant to sub-clause (1) of
this clause the Joint Venturers shall at all times during the currency of this
Agreement be and remain liable for the due and punctual performance and
observance of all the covenants and agreement on their part contained herein
and in any lease license easement grant or other title the subject of an
assignment under the said sub-clause (1).
Variation 4
32. (1) The parties
hereto may from time to time by agreement in writing add to substitute for
cancel or vary all or any of the provisions of this Agreement or of any lease
license easement or right granted hereunder or pursuant hereto for the purpose
of more efficiently or satisfactorily implementing or facilitating any of the
objects of this Agreement.
(2) Where in the
opinion of the Minister an agreement made pursuant to sub-clause (1) of this
clause would constitute a material or substantial alteration of the rights or
obligations of either party hereto, the Agreement shall contain a provision to
that effect and the Minister shall cause that Agreement to be laid on the
table of each House of Parliament within twelve sitting days of the date of
its execution.
(3) If either House
does not pass a resolution disallowing the Agreement, within twelve sitting
days of that House after the Agreement has been laid before it, the Agreement
shall have effect, from and after the last day on which the Agreement might
have been disallowed.
Variation of Proposals 4
33. The Minister may from time to time at the
request of the Joint Venturers approve variations in the detailed proposals
relating to any railway or port site and/or port facilities or dredging
programme or townsite or town planning of any other facilities or services or
other plans specifications or proposals which may have been approved pursuant
to this Agreement and in considering such variation shall have regard to any
changes consequent upon joint user proposals of any such works facilities or
services and other relevant factors arising after the date hereof. Where the
variation referred to in this clause constitutes a material or substantial
alteration to the rights and/or obligations of either party as set out in this
Agreement the provisions of clause 32 shall apply.
Alteration of works 4
34. If at any time the State finds it necessary to
request the Joint Venturers to alter the situation of any of the installations
or other works (other than the Joint Venturers’ wharf) erected
constructed or provided hereunder and gives to the Joint Venturers notice of
the request the Joint Venturers shall within a reasonable time after receipt
of the notice but at the expense in all things (including increased running
costs) of the State (unless the alteration is rendered necessary by reason of
a breach by the Joint Venturers of any of their obligations hereunder) alter
the situation thereof accordingly.
Joint user 4
35. (1) The Joint
Venturers shall be entitled at any time and from time to time with the prior
approval of the Minister to enter into an agreement with any third party for
the joint construction maintenance and user or for the joint user only of any
work constructed or agreed to be constructed by the Joint Venturers pursuant
to the terms of this Agreement or by such other party pursuant to any
agreement entered into by it with the State and in any such event any amount
expended in or contributed to the cost of such construction by the Joint
Venturers shall for the purpose of the calculation of the sum agreed to be
expended on that work by the Joint Venturers under this Agreement and if so
approved by the Minister be taken and accepted as an amount equal to the total
amount expended (whether by the Joint Venturers or the said third party or by
them jointly) in the construction of such work.
(2) When any agreement
entered into by the Joint Venturers with some other company or person results
in that other company or person discharging all or any of the obligations
undertaken by the Joint Venturers under this Agreement or renders it
unnecessary for the Joint Venturers to discharge any obligation undertaken by
them hereunder the Minister will discharge or temporarily relieve the Joint
Venturers from such part of their said obligations as is reasonable having
regard to the extent of any period for which the other company or person
actually effects the discharge of those obligations.
Export Licence 4
36. (1) On request by
the Joint Venturers the State shall make representations to the Commonwealth
for the grant to the Joint Venturers of a license or licenses under
Commonwealth law for the export of ore in such quantities and at such rate or
rates as shall be reasonable having regard to the terms of this Agreement the
capabilities of the Joint Venturers and to maximum tonnages of ore for the
time being permitted by the Commonwealth for export from the said State and in
a manner or terms not less favourable to the Joint Venturers (except as to
rate or quantity) than the State has given or intends to give in relation to
such a license or licenses to any other exporter of ore from the said State.
(2) If at any time the
Commonwealth limits by export license the total permissible tonnage of ore for
export from the said State then the Joint Venturers will at the request of the
State and within three (3) months of such request inform the State whether or
not they intend to export to the limit of the tonnage permitted to them under
Commonwealth licenses in respect of the financial year next following and if
they do not so intend will co-operate with the State in making representations
to the Commonwealth with a view to some other producer in the said State being
licensed by the Commonwealth to export such of the tonnage permitted by the
Commonwealth in respect of that year as the Joint Venturers do not require and
such other producer may require. Such procedure shall continue to be followed
year by year during such time as the Commonwealth limits by export license the
total permissible tonnage of ore for export from the said State.
(3) The Joint
Venturers shall be in default hereunder if at any time they fail to obtain any
license or licenses under Commonwealth law for the export of iron ore as may
be necessary for the purpose of enabling the Joint Venturers to fulfil their
obligations hereunder or if any such license is withdrawn or suspended by the
Commonwealth and such failure to obtain or such withdrawal or suspension (as
the case may be) is due to some act or default by the Joint Venturers or to
the Joint Venturers not being bona fide in their application to the
Commonwealth or otherwise having failed to use their best endeavours to have
the license granted or restored (as the case may be) but save as aforesaid if
at any time any necessary license is not granted or any license granted to the
Joint Venturers shall be withdrawn or suspended by the Commonwealth and so
that as a result thereof the Joint Venturers are not for the time being
permitted to export at least the tonnage they have undertaken with the State
they will export then the Joint Venturers shall be relieved from the
obligation to export that tonnage during the period such license is not
granted or is withdrawn or suspended. The State shall at all times be entitled
to apply on behalf of the Joint Venturers (and is hereby authorised by the
Joint Venturers so to do) for any license or licenses under Commonwealth law
for the export of ore as may from time to time be necessary for the purposes
of this Agreement.
Delays 4
37. This Agreement shall be deemed to be made
subject to any delays in the performance of obligations under this Agreement
and to the temporary suspension of continuing obligations hereunder which may
be occasioned by or arise from circumstances beyond the power and control of
the party responsible for the performance of such obligations including delays
or any such temporary suspension as aforesaid caused by or arising from Act of
God force majeure floods storms tempests washaways fire (unless caused by the
actual fault or privity of the Joint Venturers) act of war act of public
enemies riots civil commotions strikes lockouts stoppages restraint of labour
or other similar acts (whether partial or general) shortages of labour or
essential materials reasonable failure to secure contractors delays of
contractors and inability (common in the iron ore export industry) to
profitably sell ore or factors due to overall world economic conditions or
factors which could not reasonably have been foreseen PROVIDED ALWAYS that the
party whose performance of obligations is affected by any of the said causes
shall minimise the effect of the said causes as soon as possible after their
occurrence.
Power to extend periods 4
38. The Minister may whether or not the period to
be extended has expired or the date to be varied has passed at the request of
the Joint Venturers from time to time extend or further extend any period or
vary or further vary any date referred to in this Agreement for such period or
to such later date as the Minister thinks fit.
Arbitration 4
39. Any dispute or difference between the parties
arising out of or in connection with this Agreement or any agreed amendment or
variation thereof or agreed addition thereto or as to the construction of this
Agreement or any such amendment variation or addition or as to the rights
duties or liabilities of either party thereunder or as to any matter to be
agreed upon between the parties under this Agreement shall in default of
agreement between the parties and in the absence of any provision in this
Agreement to the contrary be referred to the arbitration of two arbitrators
one to be appointed by each party, the arbitrators to appoint their umpire
before proceeding in the reference and every such arbitration shall be
conducted in accordance with the provisions of the Arbitration Act 1895
PROVIDED THAT except where this Agreement makes express provision for
arbitration hereunder this clause shall not apply to any case where the State
the Minister or any Minister is by this Agreement given either expressly or
impliedly a power or discretion to approve consent direct or otherwise act in
any particular way.
Notices 4
40. Any notice consent or other writing authorised
or required by this Agreement to be given or sent shall be deemed to have been
duly given or sent by the State if signed by the Minister or by any senior
officer of the Public Service of the said State acting by the direction of the
Minister and forwarded by prepaid post to the Joint Venturers at their
registered offices for the time being in the said State and by the Joint
Venturers if signed on their behalf by a director, manager or secretary of the
Joint Venturers or any person or persons authorised by the Joint Venturers in
that behalf or by their solicitors as notified to the State from time to time
and forwarded by prepaid post to the Minister and any such notice consent or
writing shall be deemed to have been duly given or sent on the day on which it
would be delivered in the ordinary course of post.
Exemption from stamp duty 4
41. (1) The State
shall exempt from any stamp duty which but for the operation of this clause
would or might be chargeable on —
(a) this
Agreement;
(b) any
instrument executed by the State pursuant to this Agreement granting to or in
favour of the Joint Venturers or any permitted assignee of the Joint Venturers
any tenement lease easement license or other right or interest;
(c) any
assignment sub-lease or disposition (other than by way of mortgage or charge)
or any appointment made in conformity with the provisions of clause 31 hereof;
and
(d) any
assignment sub-lease or disposition (other than by way of mortgage or charge)
or any appointment to or in favour of the Joint Venturers or an associated
company of any interest right obligation power function or authority which has
already been the subject of an assignment sub-lease disposition or appointment
executed pursuant to clause 31 hereof;
PROVIDED THAT this clause shall not apply to any instrument or other document
executed or made more than seven (7) years from the date hereof.
(2) If prior to the
date on which the Bill referred to in clause 2(1)(b) hereof to ratify this
Agreement is passed as an Act stamp duty has been assessed and paid on any
instrument or other document referred to in sub-clause (1) of this clause the
State when such Bill is passed as an Act shall on demand refund any stamp duty
paid on any such instrument or other document to the person who paid the same.
Interpretation 4
42. This Agreement shall be interpreted according
to the law for the time being in force in the said State.
Determination of previous agreements 4
43. The agreement of which a copy is set out in
the First Schedule to the Iron Ore (Hanwright) Agreement Act 1967-1968 as
amended by the agreement of which a copy is set out in the Second Schedule to
that Act is hereby determined.
FIRST SCHEDULE
Firstly — The agreement under seal of even date herewith between the
Honourable John Trezise Tonkin, M.L.A., Premier of the State of Western
Australia acting for and on behalf of the said State and Instrumentalities
thereof of the one part and Mount Bruce Mining of the other part.
Secondly — The agreement under seal of even date herewith between the
Honourable John Trezise Tonkin, M.L.A., Premier of the State of Western
Australia acting for and on behalf of the said State and Instrumentalities
thereof of the one part and Hamersley of the other part.
SCHEDULE
WESTERN AUSTRALIA
IRON ORE (WITTENOOM) AGREEMENT ACT 1972
MINERAL LEASE
Lease No. Goldfield
ELIZABETH THE SECOND by the Grace of God of the United Kingdom Australia and
Her other Realms and Territories Queen, Head of the Commonwealth, Defender of
the Faith: TO ALL WHOM THESE PRESENTS shall come GREETINGS: KNOW YE that
WHEREAS by an Agreement made the day of 1972
BETWEEN the State of Western Australia of the one part and ( inter alia )
Hancock Prospecting Pty. Ltd. and Wright Prospecting Pty. Ltd. (hereinafter
called “the Joint Venturers” in which term shall be included the
Joint Venturers and each of them jointly and severally and their and each of
their successors and assigns and including where the context so admits the
assignees of the Joint Venturers under clause 31 of the said Agreement) of the
other part the said State agreed to grant to the Joint Venturers a mineral
lease or leases of portion or portions of the lands referred to in the said
Agreement as the mining areas AND WHEREAS the said Agreement was ratified by
the Iron Ore (Wittenoom) Agreement Act 1972 which said Act ( inter alia )
authorised the grant of a mineral lease or leases to the Joint Venturers NOW
WE in consideration of the rents and royalties reserved by and of the
provisions of the said Agreement and in pursuance of the said Act DO BY THESE
PRESENTS GRANT AND DEMISE unto the Joint Venturers subject to the said
provisions ALL THAT piece or parcel of land situated in
the
Goldfield(s) containing approximately acres and (subject
to such corrections as may be necessary to accord with the survey when made)
being the land shaded pink on the plan in the Schedule hereto and all those
mines, veins, seams, lodes and deposits of iron ore in on or under the said
land (hereinafter called “the said mine”) together with all
rights, liberties, easements, advantages and appurtenances thereto belonging
or appertaining to a lessee of a mineral lease under the Mining Act 1904
including all amendments thereof for the time being in force and all
regulations made thereunder for the time being in force (which Act and
regulations are hereinafter referred to as “the Mining Act”) or to
which the Joint Venturers are entitled under the said Agreement TO HOLD the
said land and mine and all and singular the premises hereby demised for the
full term
of twenty-one years from the day of
19
with the right to renew the same for two further successive periods, each of
twenty-one years as provided in but subject to the said Agreement for the
purposes but upon and subject to the terms covenants and conditions set out in
the said Agreement and to the Mining Act (as modified by the said Agreement)
YIELDING and paying therefor the rent and royalties as set out in the said
Agreement. AND WE do hereby declare that this lease is subject to the
observance and performance by the Joint Venturers of the following covenants
and conditions, that is to say:—
(1) The Joint
Venturers shall and will use the land bona fide exclusively for the purposes
of the said Agreement.
(2) Subject to the
provisions of the said Agreement the Joint Venturers shall and will observe,
perform and carry out the provisions of the Mines Regulation Act 1946 , and
all amendments thereof for the time being in force, and the regulations for
the time being in force made thereunder and subject to and also as modified by
the said Agreement the Mining Act so far as the same affect or have reference
to this lease.
PROVIDED THAT this lease and any renewal thereof shall not be determined or
forfeited otherwise than under and in accordance with the provisions of the
said Agreement. PROVIDED FURTHER that all petroleum on or below the surface of
the demised land is reserved to Her Majesty with the right to Her Majesty or
any person claiming under her or lawfully authorised in that behalf to have
access to the demised land for the purpose of searching for and for the
operations of obtaining petroleum in any part of the land under the provisions
of the Petroleum Act 1967 .
IN WITNESS whereof we have caused our Minister for Mines to affix his seal and
set his hand hereto at Perth in our said State of Western Australia and the
common seals of the Joint Venturers have been affixed hereto this
day of
19 .
THE SCHEDULE ABOVE REFERRED TO:
IN WITNESS whereof this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
|
SIGNED by the said THE HONOURABLE JOHN TREZISE TONKIN, M.L.A., in the presence
of — |
|
|
DON MAY,
Minister for Mines.
|
THE COMMON SEAL of HANCOCK PROSPECTING PTY. LTD. was hereunto affixed by the
Governing Director LANGLEY GEORGE HANCOCK in accordance with the Articles of
Association. |
|
[C.S.] |
L. G. HANCOCK.
|
THE COMMON SEAL of WRIGHT PROSPECTING PTY. LTD. was hereunto affixed by
authority of the Directors and in the presence of — |
|
[C.S.] |
L. G. HANCOCK,
Director.
B. BERESFORD,
Secretary.
[Schedule 1 amended: No. 41 of 1992 s. 6.]
